Tuesday, August 22, 2017

India's Supreme Court Invalidates Triple Talaq Divorces For Muslims

India's Supreme Court today, by a vote of 3-2, invalidated the Sunni Muslim practice of divorce by triple talaq. In Bano v. Union of India, (India S.Ct., Aug. 22, 2017), in 3 opinions spanning 395 pages, three justices agreed (in 2 separate opinions) that triple talaq is invalid. Two other justices concluded that the practice is not unconstitutional, but urged the government to legislate on the matter within 6 months and would have enjoined use of the divorce procedure during that period.

Justice Nariman's opinion, joined by Justice Lalit concluded:

it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 [Right to Equality] of the Constitution of India. In our opinion, therefore, the 1937 Act [Muslim Personal Law (Shariat) Application Act], insofar as it seeks to recognize and enforce Triple Talaq ... must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.

Justice Joseph concluded that "triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat." He continued:

The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible.... What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.

Chief Justice Khehar, Joined by Justice Nazeer, concluded that triple talaq is protected by Article 25 of the Constitution that protects freedom of religion, saying in part:

It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’, must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be (-including self-proclaimed rationalists, of the same faith). Article 25 obliges all Constitutional Courts to protect ‘personal laws’ and not to find fault therewith. Interference in matters of ‘personal law’ is clearly beyond judicial examination....

However, he qualified this by calling on the government to modify the situation by legislation, saying:

[we] are satisfied, that this is a case which presents a situation where this Court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution. We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’. We hope and expect, that the contemplated legislation will also take into consideration advances in Muslim ‘personal law’ – ‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States....

Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat' as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months.